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Harm, Sentence Severity and Serious Motoring Offenders
Ralph Henham
Reader in Law,Nottingham Trent University
Copyright © 1996 Ralph Henham.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Summary
The purpose of this note is to delineate the difficulties inherent in emphasising risk assessment for the purpose of determining the quality of driving in serious motoring offences. It is argued that the current substantive principles militate against subjective consideration of risk assessment which are relevant at the sentencing stage. In conclusion, it is submitted that penalty levels and sentencing principles for serious motoring offences would be more appropriately based upon harm assessment.
Contents
- Introduction
- Research evidence
- Operationalising risk assessment
- Proportionality and seriousness
- Substantive law or sentencing principles?
- An alternative solution
- Research evidence
Introduction
The rationale behind sentencing policy for serious motoring offenders as interpreted by the Court of Appeal has wavered between emphasis on the fact of death at the expense of the nature of the risk created by the offender's driving. This has, in effect, reflected a conflict between the principle enunciated in Krawec (1984) 6 Cr App R (S) 367 and the approach adopted by Lord Lane CJ in Boswell (1984) 6 Cr App R (S) 257. In Krawec Lord Lane had emphasised that the quality of the driving was more important than the unforeseen and unexpected results of carelessness whereas in Boswell he had suggested that the fact of death should be acknowledged as an aggravating factor where it results as an incidence of reckless driving. Ashworth (1992, p 105) has long advocated a policy which concentrates on the assessment of the risk of death or serious injury caused on the basis that there is no justification for treating culpability any differently where death occurs than where it does not. The only difference between causing death and serious injury by dangerous driving is that the risk materialises in one case and not in the other. Assessment of the risk of harm also facilitates dealing with those cases where the risk does not materialise at all.Ashworth (1991, pp 267-70; 1995 pp 298-302) argues that an exception could be made in cases where death results from driving affected by alcohol on the basis that the level of culpability is sufficiently high whereas, at the opposite end of the spectrum, penalties for recklessly taking a risk may well outweigh those for many property offences. In such cases although the fault element may be considered low the level of harm which may materialise is potentially serious. This alone places the fact that the risk has been taken recklessly above many intentional property offences and therefore, as stated by Lord Lane CJ in Krawec, the sentence should be fixed according to "the degree of carelessness and culpability". This essentially involves making an assessment of the extent to which the defendant's driving fell below the standard of a reasonably competent driver and the extent to which the defendant should be held responsible for that shortfall. There are, however, a number of contentious issues involved in the principle of risk assessment which must be addressed. We therefore turn to consider research evidence confirming the significance of subjective considerations of driver risk, the relevance of objectivism in substantive criminal law for sentencing policy in this context, the requirements of proportionality and seriousness assessment imposed by our sentencing system and the appropriateness of dealing with driver culpability at the sentencing stage.
Research evidence
The objective assessment of risk necessarily presumes the existence of a general measure of agreement regarding the standard of driving behaviour expected from a reasonably competent driver. Recent research by Corbett and Simon (1991) has again cast doubt on the extent to which such assumptions can be made. For example, they noted, (Corbett and Simon 1991, p 159) in relation to drink driving, that while driving with excess alcohol was a strict liability offence respondents regarded the feeling that their driving ability was not affected as a slight mitigating factor and it was suggested that sentencers even appeared to grade their penalties according to the degree to which they thought offenders had perceived the negative effects of their alcohol consumption.. In a later study, Corbett and Simon (1992) again indicated that significant variations exist between subjective and objective appreciation of risk. For example, in their public-house study, they found that alcohol drinking drivers' evaluations of their own competence to drive were seriously distorted. Some drivers even insisted that familiarity with alcohol afforded protection such that they could drink more and still remain under the limit. Corbett and Simon noted that these subjective assessments were further compounded and distorted by the fact that alcohol negatively affects a driver's ability and judgement while at the same time inducing feelings of contentment and self-confidence. Further, in relation to drivers stopped for speeding, sixty-three per cent believed there was a link between breaking speed limits and accidents in general although only fifty per cent believed their own accident risk was raised by their speeding. The disjunction between perceived and actual control observed in such studies reinforces suspicion concerning the general public's ambivalent view of the perceived criminality of motoring offences.(1) therefore, be argued that these important subjective considerations in risk assessment cannot simply be ignored by the formulation of purely objective tests of driver competence for sentencing purposes.
Operationalising risk assessment
The artificial distinction drawn between intention, recklessness and negligence in substantive criminal law serves primarily to distinguish between different fault elements in offences. However, in order to achieve this distinction risk assessment has emerged as a crucial factor characterised by arguments between subjectivism and objectivism.(2) It is unnecessary to repeat these arguments in the present context except to emphasise that some of the issues raised bear further examination and relevance for sentencing policy. In particular, Duff (1990, p142) when discussing risk assessment and recklessness emphasised four points having general relevance to the present context:-
(i) There are different levels of risk awareness. These are a matter of subjective fact and range from virtual or moral certainty to inadvertent risk-taking. In sentencing terms subjective awareness could simply be taken into account as mitigation or aggravation yet if penalty levels are to be predicated on risk assessment (as opposed to harm) some standardised (ie objective) measure is demanded.(ii) Risk-taking should be measured by some objective criterion because it is necessary to decide the extent to which the risk-taking was unjustified. This is to judge the reasonableness of the risk of which the defendant was aware.
(iii) The reasonableness or unreasonableness of a risk may depend also on its relative disvalue. In the motoring context there is clearly disagreement between subjective and objective perceptions of the balance between social utility and action. This makes the development of objective criteria for risk assessment more problematic.
(iv) It is difficult for objective criteria to reflect the difference between choice and indifference in risk-taking. For example, this has become apparent in substantive criminal law with regard to Caldwell objective recklessness. The unresolved debate as to whether recklessness should involve only conscious risk-taking illustrates problems that would arise in sentencing motoring offenders were penalty levels to be determined by culpability assessed predominantly on the basis of advertent or inadvertent risk-taking. One answer to this dilemma would be to stress the subjective component in any objective standard adopted. For instance, as Duff (1990, p 156) recognises, the ability of a driver convicted of driving without due care and attention is judged primarily against the objective standard of the reasonable person, yet, there is a subjective element in that D's culpability is determined by whether he could have taken the care which he failed to take and the extent of his failure. Nevertheless, Lawrence [1982] AC 510 ruled out such subjectivisation in driving cases and the legislation is unequivocal in stating that drivers are to be judged by reference to the objective standard of the competent and careful driver.
These arguments have been familiar in recent development of the substantive motoring offences and, in particular, the deliberations contained in the North Report (see Spencer 1988). This report stressed objectivity in the definition and assessment of very bad driving (Spencer 1988, p 719) and the necessity to establish that the definition would only be satisfied if the standard of driving fell far below the standard of the competent and careful driver. The subsequent White Paper, the Road User and the Law (1991), advocated a sliding scale of objectively assessed behaviour. If driving fell below the standard expected of a competent and careful driver it would amount to careless driving and if far below the standard it would constitute a dangerous driving offence. However, the White Paper added the recommendation that the driving should carry a potential or actual danger of physical injury or serious damage to property. This recommendation was then adopted in the definition of dangerous driving set out in the revised Road Traffic Act 1988 s 2A which does not require the prosecution to prove in every case that D was actually conscious of any danger involved since this is assessed with reference to a fictional "competent and careful" driver faced with the same situation as the defendant.(3) As we have seen such purely objective criteria ignore the complex interplay between subjective and objective perceptions of the criminality of motoring behaviour. Their vagueness does not help to provide a coherent framework from which to develop sentencing principles for risk assessment and their relationship to penalty levels.
Proportionality and seriousness
The need for rationality and standardisation of sentencing criteria is further demanded by our deserts based sentencing system. As von Hirsch (1993, pp 104-5) has argued, ordinal proportionality requires that equally serious conduct be punished with approximately equal severity and unequally serious conduct penalised so as to reflect the differences in gravity involved. Among several objections to the ability of proportionalist sentencing schemes to achieve penal justice is the argument that moral dissensus underpins many areas of human behaviour some of which is criminalised. As we have seen, research evidence indicates a high degree of moral ambivalence regarding many aspects of motoring behaviour with only the more serious and blatant behaviours drawing widespread condemnation. Von Hirsch (1993, p 106) maintains that crime seriousness can in fact be assessed by the State in terms of harm- gauged by the typical impact of the conduct on a person's living standard and culpability - by the conduct's degree of purposefulness or carelessness. Others, such as Robinson (1987, and see von Hirsch 1987) have advocated departure from proportionality principles where conduct is both very harmful to victims and significant in occurrence, as in the case of drink- driving. The English system in fact only permits departure from proportionality under the protective sentencing provisions of the Criminal Justice Act 1991 s 2(1)(b) (4) and the imperative to develop sentencing principles which accord with this principle in all other cases therefore persists. Ashworth (1991, pp 43-51; 1995, pp 35-42) has explored the difficulties inherent in the assessment of the relative seriousness of harms on a single scale in which the relative assessment of risk perception forms only one component. The need to introduce objectivity into the assessment of those component factors could, Ashworth suggests (1995, pp 37-40), be derived from principles constructed for making sense of competing views, such as the living standard analysis proposed by von Hirsch and Jareborg (1991). The essential issue in their assessment is the effect of the offence (which must violate certain specified individual interests) upon the conditions for enjoying some "quality of life". Offences causing death would be ranked at the first level while offences involving dangerous and drunken driving would probably rank substantially at the first or second level. A living standards assessment can be adapted to take account of variables such as high or low risk of harm (5) yet, in the final analysis, the presumed objectivity of these, as with any other similar principles, rests on an assumed moral consensus which is problematic. In the case of risk assessment it does not proceed much further than imposing the State's value judgement on the court's assessment of the extent to which danger would have been perceived by a reasonably competent and careful driver.
Substantive law or sentencing principles?
The conventional approach for dealing with the conceptual problems of culpability and proportionality has followed the notion that the substantive law exists to fix the minimum conditions for liability whilst sentencing principles should determine the degree to which any offender can be held responsible for the consequences that follow from his actions. In terms of the difficulties presented by risk assessment there is no link between substantive considerations of risk and the role of risk assessment at the sentencing stage. The latter is considered as a component element relevant to the assessment of offence seriousness (for statutory purposes) which in turn determines the hierarchy of penalty levels. Since the two main elements in seriousness assessment are harm and culpability it necessarily follows that risk is to be regarded as relevant to culpability.
There is, however, another important issue to be considered in this context. This concerns the proposal made by Clarkson and Keating (1994, p 814) that indicators of blame and harm should be dealt with at the substantive level. The basis of their argument is that these factors are relevant to the moral assessment of the crime. They advance two reasons for advocating this distinction:- firstly, that it is the function of the law to draw moral distinctions between offences of differing severity (6) and, secondly, that suggested indicators of blame and harm cannot be satisfactorily established at the sentencing stage. Clarkson and Keating suggest that the situation would not be substantially ameliorated by improving post-conviction procedures since distinctions drawn at the sentencing stage are never likely to be perceived as being as morally informative as those drawn at the substantive stage. It is submitted that this would be a constructive approach to adopt for the rationalisation of penalty levels in serious motoring offences. In addition, there is no reason why penalty levels in such cases cannot be directly related to offence definitions which are sufficiently precise to provide a coherent framework.
An alternative solution
It has been argued that the interplay between subjective and objective perceptions of risk renders risk assessment an unsuitable basis from which to extrapolate penalty levels and sentencing principles for serious motoring offences. I would suggest that by concentrating on harm assessment it is possible to develop the basis for a hierarchy of offences which could be linked directly to penalty levels and would not need to be re-interpreted by the Court of Appeal for sentencing purposes to develop principles appropriate to the deserts framework which informs the English sentencing system. It is also assumed that the concept of harm assessment is essentially value neutral, except for the initial decision as to which harms should be included, (7) since the objective existence of physical harm is incontrovertible. Clarkson and Keating (1994, p 815) suggest that it is impossible to incorporate every factor bearing on blame or harm into offence definitions at the substantive level since it would result in a law of unmanageable complexity. One such factor is the subjective perception and impact of harm which can be readily accommodated within post-conviction principles.
A possible solution is the replacement of present offence definitions and related penalty levels with a new hierarchical offence structure for serious motoring offences which abolishes minimum and maximum penalties for particular offences and allows the court to fix sentence in its discretion (subject to an overall maximum sentence) according to the level of harm. Thus the Appeal Courts would still be required to develop relevant sentencing guidance but this would be directly related to the levels of harm specified in offence definitions. In cases not involving specific injury (or minimal harm) it may be possible to categorise undue risk taking as harmful in itself, since there is no doubt that threats to our presumption of safety or our bodily integrity are palpable harms. Recognition of this might allow harm and risk to be combined on one scale. Further sophistication could be provided to both harm and risk assessment within a framework which would identify the relevant weights to be given to each component factor and link them directly to seriousness, such as the von Hirsch and Jareborg living standard analysis. This approach would provide greater proportionality than Appeal Court sentencing principles could achieve in the present context.
Ashworth, AJ (1991) Principles of Criminal Law (1st ed) (Oxford: Oxford University Press).
Ashworth, AJ (1995) Principles of Criminal Law (2nd ed) (Oxford: Oxford University Press).
Ashworth, AJ (1992) Sentencing and Criminal Justice (1st ed) (London: Weidenfeld and Nicolson); (2nd ed, 1995) (London: Butterworths).
Clarkson, CMV and Keating, HM (1994) Criminal Law: Text and Materials (3rd ed) (London: Sweet and Maxwell).
Corbett, C and Simon F (1991), 'Police and Public Perceptions of the Seriousness of Traffic Offences' 31(2) British Journal of Criminology 153.
Corbett, C and Simon F (1992) 'Decisions to Break or Adhere to the Rules of the Road Viewed from the Rational Choice Perspective' 32(4) British Journal of Criminology 537.
Duff, RA (1990) Intention, Agency and Criminal Liability (Oxford: Basil Blackwell).
Gross, H (1979) A Theory of Criminal Justice (New York: Oxford University Press).
Home Office (1994) Breath Test Statistics England and Wales 1993, Statistical Bulletin 14/94 (London: Home Office).
North, P (1988) Road Traffic Law Review Report, Department of Transport and Home Office (Dr P North, chairman) (London: HMSO).
Packer, H (1969) The Limits of the Criminal Sanction (Stanford: Stanford University Press).
Robinson, P (1987) 'Hybrid Principles for the Distribution of Criminal Sanctions', 82 Northwestern Law Review 19.
Spencer, J R (1988) 'Road Traffic Law: A Review of the North Report' 35 Criminal Law Review 707.
von Hirsch, A (1987) 'Hybrid Principles in Allocating Sanctions: A Response to Professor Robinson, 82 Northwestern Law Review 64.
von Hirsch, A (1993) Censure and Sanctions (Oxford: Oxford University Press).
von Hirsch, A and Jareborg N (1991) 'Gauging Criminal Harm: a Living Standard Analysis', 11 Oxford Journal of Legal Studies 1.
Walker, N (1969) Sentencing in a Rational Society (Harmondsworth: Penguin).
Wasik, M and von Hirsch, A (1990) 'Statutory Sentencing Principles: The 1990 White Paper' 53 Modern Law Review 508.
White Paper (1991) The Road User and the Law (London: HMSO) Cm 57.
Footnotes
(1) According to a 1995 Lex Report on Motoring reported in The Times, January 18, 1995 one in seven of the 1500 drivers questioned said they would risk driving home several miles after a few drinks at a friend's house, even though the survey revealed that two-thirds of drivers believe drinking and driving is the biggest cause of accidents. This is certainly borne out by the breath test statistics. In 1993 the total number of screening breath tests in England and Wales was 599,600; 12.9 per cent greater than in 1992, and there were 89,400 positive or refused tests; 1.8 per cent greater than in 1992. Notwithstanding, since the number of screening tests increased more than the number of positive and refused tests, the proportion of screening tests which were positive or refused fell 2 per cent to 15 per cent in 1992 (the lowest proportion of positive and refused tests ever measured). There has in fact been a decline in the proportion of positive or refused tests from the 42 per cent recorded in 1984. Even though it is evident that the police are now finding much lower proportions of positive and refused tests than 10 years ago many would still regard the present proportions as unacceptably high particularly in view of the risk due to increased traffic circulation; see Home Office (1994). The subjective perception of the relationship between alcohol consumption and driving ability similarly affects the rules of evidence. In Woodward, The Times, December 7, 1994, the Court of Appeal held that on a prosecution for causing death by dangerous driving evidence that the motorist had been drinking before driving was admissible but mere consumption of alcohol in itself was insufficient to establish that he had consumed such a quantity of alcohol as might adversely affect a driver. In other words, the issue was whether a jury would have been satisfied that the appellant had consumed such a quantity of alcohol as might adversely affect a driver. In such circumstances it was incumbent on the trial judge to warn the jury against taking the appellant's drinking into account because, if they did so, they could only be speculating. In this case the estimates as to the appellants drinking ranged from two to six pints of lager although there was conjecture as to its effects. Back to text .
(2) Ashworth, (1991, p 172), maintains that such a characterisation could be misleading in that some fault requirements either have both objective and subjective elements (recklessness) or can be adapted to take account of them (negligence). In his view the real issue is whether criminal liability is only appropriate (for "traditional offences") where the defendant can be proved to have adverted to the prohibited consequence and to have been aware of the relevant circumstances. In the second edition (1995, p 192) Ashworth asserts that in strict liability offences the courts have neglected the importance of requiring fault and the significance of individual autonomy whilst a reverse tendency has been evident when dealing with recklessness. Back to text .
(3) Some guidance is provided by Road Traffic Act 1988 s 2A(2) which refers to the current state of the vehicle making it obvious to the competent and careful driver that driving such a vehicle would be dangerous. Section 2A(3) states that regard may be had to circumstances of which the competent and careful driver may not have been aware but which are shown to be within the specific knowledge of the defendant. Section 2A(4) allows regard to be had to anything attached to or carried on or in the vehicle in question. Back to text .
(4) See, for example, Wasik and von Hirsch (1990, p 508) who argued that the desert requirement was compromised by the proposal to allow predictive confinement for persistent violent and sexual offenders. Additional increases in penalty levels could not be justified on desert grounds because of the known inaccuracy of predictive techniques. Back to text .
(5) A risk-orientated approach would need to consider what weight should be given to some or all of the following factors: the likelihood of the risk created, the degree of harm risked, the degree of harm actually caused (if appropriate) and the claims of the public to protection from exposure to future risk. Back to text .
(6) This, of course, the Offences against the Person Act (1861) manifestly failed to do in the case of non-fatal offences against the person both in terms of offence definitions and penalty levels. Back to text .
(7) For examples of different approaches to this issue see Packer (1969), Walker (1969) and Gross (1979). Back to text .